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JOSEPH F. LEWIS v. COMMONWEALTH PENNSYLVANIA (03/03/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 3, 1983.

JOSEPH F. LEWIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Joseph F. Lewis v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 72 Pa. Commw. Page 399]

Joseph Lewis (Petitioner) has filed a petition for review with this Court in its appellate jurisdiction.*fn1 The petition avers that the Board of Probation and Parole (Board) failed to hold within 120 days a rehearing it had granted him pursuant to his application for administrative relief. Presently before us for disposition is Petitioner's motion for summary relief, filed pursuant to Pa. R.A.P. 1532(b),*fn2 averring that there is no genuine issue of fact and that Petitioner is entitled to judgment as a matter of law.

Factually, the Board held a timely violation and revocation hearing on September 18, 1980, at which

[ 72 Pa. Commw. Page 400]

    hearing Petitioner waived his right to representation by counsel.*fn3 On January 23, 1981, Petitioner requested a new violation/revocation hearing because he was not represented by counsel at the September 18, 1980 hearing. The Board granted the request on February 11, 1981 and fixed the date for the rehearing for August 5, 1981. Petitioner did not appeal from that order. Due to no fault of Petitioner, the hearing was not held until August 31, 1981.

In response to the minimum due process requirements for parole violation and revocation hearings as set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), the Board adopted regulations providing that parole violation hearings must be held not later than 120 days of a preliminary hearing, 37 Pa. Code § 71.2(11), and that parole revocation hearings, where the violation charged is the conviction for a new offense,*fn4 shall be held within 120 days from the date the Board receives official notice of conviction. 37 Pa. Code § 71.4(2). A parolee may apply for administrative review and relief within 30 days of any Board order which he considers to be erroneous. 37 Pa. Code § 71.5(h).

Notwithstanding the fact that Petitioner waived his right to legal representation at the September 18, 1980 hearing and notwithstanding the fact that his application for administrative relief was untimely filed, the Board, as we have noted, granted a rehearing. Petitioner admits that there is no specific Board regulation pertaining to time restrictions within which rehearings shall be held but he contends that such rehearings must be held within 120 days of the

[ 72 Pa. Commw. Page 401]

    date when administrative relief was granted. The date of rehearing in the instant case, of course, exceeds that time limit.

The Board contends that it was under no obligation to give Petitioner a rehearing in the first place and even if there was such an obligation, there was no regulation requiring the Board to hold the rehearing within any particular time.

We must agree with the Board that under the circumstances of this case, it was under no duty to grant a rehearing to Petitioner. Had it refused to do so this Court would have upheld the Board's action. When the Board granted the rehearing it had already complied with the critical requirement of timely violation and revocation hearings to which Petitioner was entitled. We do not believe a parolee can reactivate the Board's regulations regarding time limitations for hearings by requesting and receiving a rehearing.

As was said in Morrissey, "Once it is determined that due process applies, the question remains what process is due." 408 U.S. at 481. We hold that in the instant case, due process was satisfied when Petitioner received his first violation/revocation hearing. He waived his right to legal representation at that hearing. He does not challenge the effectiveness of that waiver. The Board's grant of a rehearing was discretionary. A rehearing has been held. Petitioner does not allege nor has he demonstrated that he has been prejudiced by the passage of time between the grant of the administrative relief and the date of the rehearing. We take particular note of the fact that if the Petitioner was of the opinion that the Board's order fixing the date of the rehearing was in error, his proper remedy was to appeal from that order within 30 days of the date of its issuance.

[ 72 Pa. Commw. Page 402]

In view of the foregoing we must conclude that Petitioner has failed to demonstrate that his right to judgment is clear. His appeal, therefore, must be dismissed.

Order

It is ordered that Petitioner's motion for summary relief be and the same is denied.

Disposition

Motion for summary relief denied.


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